p. 350verdict of jury, and from order denying motion for new trial, made upon the minutes.
Burrill, Zábrisláe & Burrill, attorneys, and John E. Burrill and J. Archibald Murray of counsel, for appellant, on the questions considered in the opinion, argued:—-
I. Plaintiff stated that when the boat struck, she had risen from her seat on the upper deck, and walked forward to the stairway leading to the deck below, and was -standing up three feet from the top stair, and that her arms were occupied with her parasol, and she was buttoning one glove with her other hand, and that she had not hold of anything to sustain her, and had thus deprived herself of the means of protecting herself. The only difference between her and the defendant’s witnesses was as to where she was. Wherever she was at the time, she was in the condition stated. Defendant’s witnesses state that she was coming down the stairs, and had not hold of the stair rail. She says that she was not on the stairs at all, but admits that she was in the condition stated. The court first charged that if she was where she said she was, then, as matter of law she was not liable, and then charged that if she was where the defendant claims that she was, it was for the jury to determine whether she was negligent. The plaintiff’s recovery was had on the ground that the boat was moving at such a rate of speed as to render her striking the dock with force apparent to all, and to lead every one to conclude that the dock would be struck with such violence as to knock down those who did not protect themselves. Plaintiff from her seat on the upper deck had a clear view of the slip and bridge and of the “situation,” and must have known (if her wit- ' nesses testify truly), that the boat was moving rapidly, and under such circumstances as to render a
p. 354proper glasses, had less than one-half of normal vision. The rule is that if one faculty of sense is defective common prudence requires that an increased vigilance should be exercised to avert danger. Gonzales v, N. Y. & H. Co., 1 Sweeny, 506 ; Same v. Same, 38 N. Y. Supr. 57; Pierce on R. R., p. 335; Beach Contrib. Neg., § 147. And the question whether, under the circumstances, it was negligence on the part of the plaintiff, considering her physical condition, to stand where she said she did with her hands occupied, is the precise question to be submitted to the jury. In a case where plaintiff’s sight was defective, and she was injured by falling into an opening in the street, held to be a question for the jury whether her presence in the street without an attendant was contributory negligence. Davenport v. Ruckman, 37 N. Y. 568 , 573. These requests should have been charged. Coleman v. 2d. Ave. R. R., 114 N. Y, 610 .IV. The court erred in refusing to charge in accordance with the requests as to non-payment of fare when demanded. We submit that the court did not place this before the jury in the manner in which under the evidence the defendant was entitled to have it submitted, and that defendant was ' entitled to a specific charge in accordance with these requests. Coleman v. Co., supra. The. demand for fare was made by the pilot on the upper deck.' He was the only person authorized to demand payment of her fare. The pilot testified that he demanded payment of her fare, and the plaintiff, after searching in her pockets, said she had no change and would go downstairs, whereupon she went downstairs without paying her fare. The witness saw her leave the ferryboat and go on to the ferry bridge. She then spoke to the deckhand who was on the bridge by the windlass, asking for change for five dollars, which he could not give her. The
p. 355deckhand did not notice where plaintiff went after this conversation. The plaintiff on the other hand testified she never left the upper deck and paid her fare when demanded. Under these circumstances it is for the jury to say whether or not plaintiff refused payment of her fare and thereupon left the boat. If such was the fact, then plaintiff’s subsequent return to the boat without the knowledge or assent of the defendant as a trespasser or as a free passenger imposed no duty upon the latter to carry the plaintiff safely. Those who have not paid their fare and are on the carrier’s vehicle neither by his invitation, authorization nor consent, are trespassers. “ There must be a true undertaking to carry or the relation of carrier and passenger will not be held to subsist.”
Beach Contrib. Neg., § 58; Robertson
v. R. P. Co.,
22 Barb. 91 ; Eaton
v. R. P. Co., 57
N. Y., 382 , Waterbury
v. N. Y., Cent., 17
Fed. R. 671 , Flower
v. Penn. R.: R. 69
Pa. 210 .
Thomas E. Bochfort, attorney, and with Edward B. Whitney, of counsel, for respondent, on the questions considered in the opinion, argued—
I. As to the question whether the plaintiff paid her fare." The exception to the refusal to charge that if she did not pay her return fare defendant is not liable is disposed of by the case of Cleveland v. New Jersey Steamboat Co., 68 N. Y. 306 ; Thomson on Carriers of Passengers, pp. 43—4 and cases cited. The evidence would not support a claim of fraud, But intent to defraud was not claimed on the trial, Even if the question had been raised it would have been a question for the jury, not the court. MacCullar v. McKinley, 99 N. Y. 357 . It is too late to raise the question now. The only question raised was, did plaintiff pay the return fare ? In Doran v. East River Ferry Co. 3 Lans. 105 , plaintiff had crossed on the ferryboat and was on her return
p. 357of intent to defraud into its request if it wished for an exception. But in that case the court might have granted the request. As a matter of fact, the court by clear implication charged the jury that the plaintiff was not a passenger unless she paid her fare thus favoring defendant more than the law would warrant. The whole charge must be read together, and isolated portions cannot be excepted to for incompleteness if the whole conveys the correct impression. Caldwell v. N. J. S. B. Co., 47 N. Y. 282 ; Losee v. Buchanan, 51 Ib. 492.II. Defendant’s negligence. In an action of this character, it is necessary only for the plaintiff to show a situation which must have been produced by abnormal causes. The onus then rests on the defendant to prove that the injury was caused without his fault. Seybolt v. N. Y., L. E. & W. R. R. Co. 95 N. Y. 568 . Such a situation was shown by plaintiff. Defendant knowing that the onus rested on it attempted in vain to explain the accident as due to extraordinary conditions. The charge is fully sustained by the case of Seybolt v. N. Y. L. E. & W. R. R. 95 N. Y. 566 ; Breen v. N. Y. C. & H. R. R. Co. 109 Ib. 297. Smith v. British, &c. Packet Co. 46 Super. Ct. 87. There was no error in the charge that defendant was bound to use utmost care. Carriers of passengers are bound to use every precaution which skill, care and foresight can provide Caldwell v. N. J. S. B. Co. 47 N. Y. 288 , “ utmost vigilance ” Carroll v. S. I. R. R. Co., 58 N. Y. 137 ; “ utmost care” Maverick v. Eighth Ave. R. R. Co. 36 N. Y. 381 ; Kelly v. Manhattan Ry. Co. 112 Ib. 443, 451, “ highest degree of care ” Smith v. British, &c., Packet Co., 46 Super. Ct. 86.
III. As to contributory negligence. It cannot be necessary to argue that a lady has the right to stand three feet from the stairway and put on her gloves while the boat is coming into port, and that this can
p. 358not in any case be contributory negligence. But defendant cannot argue that this point should have been left to the jury, for he made no such request, but, on the contrary, asked a direction of verdict in his own favor on the point. He is, therefore, estopped to deny that the court had the right to treat the question as one of law. Stratford v. Jones, 97 N. Y. 586 ; Dillon v. Cockroft, 90 Ib. 649 ; Ormes v. Dauchy, 82 Ib. 443-448 ; Herendeen v. De Witt, 49 Hun, 53 ; Goodwin v. Bunzl, 6 Civ. Pro. 226 ; Gregory v. The Mayor, 11 State Rep. 506.The action was for damages, from the negligence of defendant’s servants in managing a steamboat. The boat ran on a ferry belonging to defendant. The boat entered the slip on the New York side of the East river and • struck against the bridge so that the boat rebounded from the bridge eight or ten feet as the jury might have found. At this time the plaintiff was upon the upper deck, two or three feet from the head of a stairway leading to the lower deck. The re-bound of the boat threw her from her footing down to the bottom of the stairs. The testimony of the defendant’s witnesses contradicted the testimony of the plaintiff. The jury gave a verdict in her favor.
The learned counsel presents as an error which requires the reversal of the judgment, that the judge refused to charge, that if the jury find that the plaintiff was standing at the top of the stairs on the ferry boat, or was descending the same at the time when the boat touched the wharf, then the defendant is not liable.
If the request were valid, it would be so on the ground that the position of the plaintiff, referred to in the request, would indicate the contributory negligence of plaintiff. There would be no such indication, however, if the plaintiff, in taking the
p. 359positions, had no reason to think that if the boat was about to touch the bridge in the ordinary way and not in the way exhibited in the case, she would lose her footing. There was no proof in the case, nor is there any legal presumption, nor is it matter of judicial cognizance, that an ordinary bump of the boat against the bridge would so far disturb the plaintiff’s footing, that the plaintiff was bound in ordinary prudence to foresee that either of the positions was dangerous.
The court also properly refused to charge the . matter of the request, that if the jury are satisfied that it was not safe for the plaintiff, in view of her impaired sight or other physical weakness, to stand at the top of the stairs on the ferry boat, or to descend the same while the boat was entering the slip, then they must find that she took the risk of any accident that resulted from being there.
The existence of the impairment of plaintiff’s sight, did not contribute to the accident unless she was bound, perhaps, to think that her sight if not impaired would inform her that the boat was on a dangerous course, likely to end in bodily harm to' her. But she was not bound to foresee the likelihood of an unskilful management of the boat, or, if by chance she did perceive that, to further foresee the actually dangerous result of that unskilful management. Nor is the request correct in supposing that the plaintiff could not recover if it was not safe for her to do the thing specified. She was not bound to be safe in fact, but to use ordinary means to secure the safety that would exist under ordinary circumstances, excepting so far as she was bound to perceive that, in fact, the circumstances were extraordinary.
I am of opinion that the request was properly refused which embodied the proposition, that, if the plaintiff descended the stairs without taking hold of
p. 360the stair-railing at the time when the boat touched the dock, then the defendant is not liable. It is to be said of this, that it did not appear, as matter of law, that it would be dangerous under ordinary circumstances not to have the hand on the railing before a shock that might be anticipated should occur. If it were of ordinary character, a jury might find that a prompt taking hold of the railing might make one safe; and, on the other side, if the shock had unusually quick and extreme results, the jury would be at liberty to find that such results could not be guarded against by a taking hold of the rail simply.
If it were not matter of law that the plaintiff was negligent in not taking hold of the rail, then the court was right in, refusing to charge, as matter of law, that the defendant was not liable if the fact that the plaintiff did not take hold of the rail contributed to plaintiff’s injury.
1 The court charged, that if the plaintiff were three feet from the gang-way, as' she said she was, then she was not negligent. In my opinion this charge was correct. Negligence is omission, and to establish it there must be proof that those circumstances existed which called for the prudence which was not used. Nothing in the case showed that if the boat had struck the bridge in an ordinary manner . the plaintiff was in danger of being injured, because she was three feet from the stairs, much less in danger of being thrown downstairs.
The court then further charged, that the jury must determine whether it was or was not negligence for the plaintiff to go downstairs under the circumstances of the case. I have already expressed the opinion, that whether or' not the plaintiff was bound to apprehend that there was to be an ordinary or extraordinary shock, it was • not matter of law that she should not use the stairs, or, if she did use them,
p. 361should have had her hand upon the rail. To make .it matter of law, it should have appeared, at least incontrovertibly, that there was reason to foresee that a person descending the stairs would be thrown from her balance in a dangerous direction, for the jury might find that there was one direction that was not dangerous, for instance, toward the rail itself, or the casing opposite to the rail.
The court was right in refusing the request to charge, that if the jury find that the pilot brought the boat into the slip at no higher speed than he believed to be necessary, the plaintiff should not recover. At least the proposition was incorrect in being placed upon the fact of belief, irrespective of that belief having been the result of an exercise of ordinary diligence in observing the condition of things and of ordinary judgment as to that condition. He may have acted as he believed to be necessary, without being properly careful in forming that belief.
For a reason of the same kind, the court rightly refused to charge, that if the jury find that the pilot and engineer were officers of skill, knowledge and experience, and that they were using their best skill and judgment in the handling of the ferry boat, and that even the exercise of such skill and judgment would not certainly insure the landing of the boat without incurring the result of such a shock or jar as is disclosed by the evidence, then the fact that such a shock or jar did occur, does not entitle plaintiff to recover. It may perhaps be the law, that the shock or jar, by itself, would not have justified a recovery. The matter, however, was stated as the consequence of the earlier part of the request being correct. This involved the use of such experience, skill and knowledge as the pilot and engineer had, which may have been in less than such experience, skill and knowledge as the defendant was
p. 362bound to provide, that is, an amount of experience and skill ordinarily fit to meet the exigencies of such occasion and that might have been anticipated.
As there was evidence that the rebound from the bridge was unusual, there was needed an explanation from the defendant to meet the presumption of negligence there created, and the complaint could not have been dismissed" on the ground that there was an absence of testimony that tended to show defendant’s negligence. The testimony did not show, incontrovertibly, a sufficient explanation of the negligence presumed.
In my opinion the court was not called upon to charge the jury, that if they should find that if the plaintiffs sight was impaired or that she was suffering from weakness or any other physical disability, then it was her duty to exercise a higher degree of care for her own safety in order to compensate for such impaired sight or other physical disability, and if she did not use that higher degree of care the plaintiff was not entitled to recover. The plaintiff was bound' to use that average degree of care, suggested by the circumstances. And perhaps she was bound to consider her physical infirmities as circumstances, and to act in view of them and the other facts. But it was not a matter of law that her consideration of them should have led her to believe that her not using the higher degree of care, intended by the request, would likely contribute to the accident that occurred.
The defendant’s counsel asked a charge, that if the jury find that plaintiff did not pay her fare for her return trip ■ on defendant’s ferry boat from Brooklyn to New York, then the defendant is not liable.
The case was such that the jury might have found that the plaintiff did not pay her fare. Yet the not paying the fare, under the facts, was not conclusive
p. 363that the defendant was not bound to use as respects the plaintiffs rights, the care due to a passenger. The jury might have found that the plaintiff went upon the boat meaning to pay her fare, and to be a passenger as of law and according to the implied request of the defendant, was her legal right. Until the relation then formed was legally ended, the defendant was bound, as respected her, to use the care due to a passenger. At least so long as she intended to pay her fare at any point in the trip, the relation was not ended by her conduct. That she intended to evade her obligation. was not made a question for the jury. It is not necessary to decide that the defendant might have ended the relation by demanding that she pay the fare or leave the boat. If there were a demand, as the pilot testified, that she pay the fare, and she omitted at that time to pay, it was not conclusively shown that the demand and omission were accompanied by the declaration, or its equivalent, that she must go from the boat. She acceded to the rightfulness of the demand and excused her not paying forthwith by asserting that she had lost a small coin. The pilot of the defendant testified. “ I said, I have got to collect the fare,’ and she said, ‘ I can’t find ten cents, and I will go downstairs. ’ ” Whether this, under the circumstances that it is not necessary here to give, was a peremptory assertion that she must leave the boat or gave her a further opportunity to pay her fare, was a question for the jury. If such an opportunity were given, then she remained possessed of the rights of a passenger until there should be a new demand of fare, another refusal, and action thereon by the defendant. The case did not show any new demand. I therefore think the ruling in this respect was valid.
The other request on the same subject was properly refused. It was, that if the jury find that the
p. 364plaintiff left the ferry boat when her fare for her return trip was demanded, and that subsequently she returned to said ferry boat without paying her fare, then defendant is not liable. If she returned, prepared and meaning to pay her fare, she was entitled to the protection due to a passenger, although she did not thereafter pay, if there were no demand of it. There was no proof in the case that a rule of the company, that bound the plaintiff, required a payment of fare before the boat should leave the slip. The facts adverted to in the request might have made testimony relevant to the question of whether the plaintiff meant to defraud the defendant. That subject was not presented upon the trial.
The exceptions that relate to ruling upon matters of evidence have been specifically considered. None of them call for a reversal of the judgment.
The judgment and order appealed from should be affirmed with costs.
Freedman and Ingraham, JJ., concurred.